The Dublin Paradox: The Improbable ‘Cooperation’ between Southern States and Asylum Seekers

Germany’s leading online newspap er headlined today, again, on saving lives in the Mediterranean: “1000 people rescued in the course of 96 hours”. The article goes on to criticise that Triton, the new Frontex joint operation replacing the Italian Mare Nostrum operation will focus on border protection rather than rescue operations. And indeed, this is critical and dramatic. But the problem runs much deeper: The dramatic scenes at sea are a result of a non-functioning, paradoxical system in Europe.

Borders are complex spaces, where state jurisdictions, privileges and obligations intersect with the rights and duties of individuals. Sea borders are particularly complex due the differing intensity of state jurisdiction in the different areas of the sea. In the Mediterranean, an added level of complexity arises out of the fact that the borders have a twofold meaning: Entering Italy simultaneously means entering the EU – or vice versa, depending on the perspective.

For years, these overlapping border levels have led to a “polarization along the principles of solidarity and responsibility” in the context of migration, as was recently criticised by the Italian Council presidency. In view of the large numbers of sea arrivals, this polarization is currently intensifying: Land borders particularly through Turkey, Greece and Bulgaria are increasingly sealed off such that the sea journey to Italy or Malta represents the only remaining open gate to “Fortress Europe”. 230.000 people sought asylum in Europe in the first half of 2014; about two thirds of these entered Europe via the Mediterranean and Malta or Italy.

The inexistence of “Europe” for irregular entries

In spite of the intersecting border levels, the Dublin Regulation defines Europe’s external borders nationally in the context of migration. There is no redistribution or burden sharing system, but the Dublin Regulation stipulates that – with few minor exceptions – the country of first entry to the EU is responsible for the asylum seeker. The Schengen agreement provides a similar regulation for other irregular migrants.

Responsibility for an asylum seeker means responsibility for reception, asylum process and, respecti vely, return or long-term integration: Even for recognised refugees, there is no free movement within the EU. Eurodac, the European fingerprint database, plays an important part for the implementation of the Dublin regulation: For the unambiguous identification of individuals, member states are required to register the fingerprints of all incoming migrants and asylum seekers.

As a consequence, the country that has registered an individual’s fingerprints will have to cover all subsequent costs for this migrant or asylum seeker. On the other hand, the latter are unable to legally stay in another European country beyond the period of three months. “Our fingerprints are here, so this is our home”, we were told by refugees living at a squat in Bari.

These regulations result in a situation where there is in fact no entry to the EU in the context of irregular migration. An entry from outside is legally designed as an entry to the respective member state. One of the refugees put it this way: “We thought we were going to Europe – but this is not Europe.”

Thus, the Dublin regulation is based on the premise that those who fail to protect their borders have to bear the consequences of that failure. Whereas it is more or less possible to seal off land borders, sealing sea borders is particularly complex, even more so since push-backs at sea have been ruled out by the ECHR in Hirsi Jaamain 2012: “Once they are on the boats, it is virtually impossible to keep migrants from reaching Europe”, we were told at the Italian Ministry of Interior.

‘Cooperating’ with migrants and asylum seekers to bypass Dublin III

Malta and Italy are particularly affected by these developments. Both countries however seem to have developed strategies – in ‘cooperation’ with arriving migrants and asylum seekers – in order to circumvent a situation where the largest share of migrants remain stuck in these countries.

In the case of Malta, this strategy consists in avoiding rescue operations in their SAR zone, such that disembarkation in Malta can be avoided. Italy and Malta have independently declared partially overlapping SAR zones. This creates confusion as to which state is responsible for coordinating rescue operations in the overlapping areas and leads to delays. The lack of clarity about responsibilities can be used to avoid interventions. Moreover, Malta holds a different interpretation of distress than Italy: For Malta both an emergency and a clear and immediate danger to the life for the passengers must exist. That means that when a Maltese ship approaches a migrant vessel, officers determine whether there is an immediate emergency, ie, whether the boat is sinking. If that is not the case, the Maltese army rescues those who want to be rescued and provides the necessary supplies and life jackets for the onward journey towards the Italian rescue zone for those who state that they want to sail on. This dangerous strategy is to the benefit of migrants in the sense that the vast majority of them do not want to arrive in Malta. This country employs a mandatory detention system for asylum seekers and irregular onward travel is very difficult. In this way, Malta and migrants ‘cooperate’ in bypassing the Dublin Regulation.

In a similar way, Italy ‘cooperates’ with migrants and asylum seekers by allowing them to travel on unregistered. Unable to let migrants drown or push them back, Italy has fully committed to saving lives at sea: Whereas the SAR system itself exists independently of migration, the Italian Coast Guard reports that far more than 90% of operations concern migrants sailing from Libya or other North African states. Operation Mare Nostrum has provided additional assets for SAR. In contrast to Malta, Italy views all migrant boats per se as unseaworthy and in distress, and thus in need of rescue. This ‘generous’ interpretation appears to be possible in combination with the fact that Italy regularly only takes fingerprints three days after arrival – of those who are still there. That is, Italy is ready to rescue, but does not assume responsibility for migrants and asylum seekers who subsequently decide to travel to other EU countries.

In this way, and contrary to the Dublin Regulation, it becomes possible for an asylum seeker to pass through both Malta and Italy and still lodge their asylum application in other European countries. An improbable ‘cooperation’ leads to a win-win situation where migrants and asylum seekers are able to follow through with their plans and reach their destinations and Italy and Malta avoid a disproportionate strain on their reception systems.